MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
Petitioner was convicted of knowingly and willfully evading the payment of income taxes for the years 1950, 1951 and 1952. A substantial part of the alleged evasion was failure to report income from dividends. Among the Government's exhibits at trial was a record, presumably
Prior to the trial, on July 16, 1956, during the course of an interrogation by agents of the Internal Revenue Service, Sanfilippo had been unable to recall when the dividend record had been received. More than a month later, August 23, 1956, Sanfilippo had met with revenue agents to verify and sign the transcript of his earlier testimony. At this meeting he executed a supplementary affidavit reciting that he wished to clarify his original answers and that he remembered that his firm had not received the dividend record until after revenue agents had begun their investigation of petitioner's tax returns. A memorandum of the conference at which this affidavit was executed was made by one of the agents present. On cross-examination of Sanfilippo the defense demanded and received various documents including the transcript of the July 16 interrogation and the August 23
Accurate analysis of these problems as a basis of their appropriate solution requires due appreciation of the background against which the statutory terms must be projected.
Exercising our power, in the absence of statutory provision, to prescribe procedures for the administration of justice in the federal courts, this Court, on June 3, 1957, in Jencks v. United States, 353 U.S. 657, decided that the defense in a federal criminal prosecution was entitled, under certain circumstances, to obtain, for impeachment purposes, statements which had been made to government agents by government witnesses. These statements were therefore to be turned over to the defense at the time of cross-examination if their contents related to the subject matter of the witness' direct testimony, and if a demand had been made for specific statements which had been written by the witness or, if orally made, as recorded by
The decision promptly gave rise to sharp controversy and concern. The day following our opinion the House of Representatives was told that the decision in Jencks posed a serious problem of national security and that legislation would be introduced. 103 Cong. Rec. 8290. The same day H. R. 7915, the first of eleven House bills dealing with what became the Jencks problem, was introduced in the House.
1. Subsection (a) requires that no statement of a government witness made to an agent of the Government and in the Government's possession shall be turned over to the defense until the witness has testified on direct examination. This section manifests the general statutory aim to restrict the use of such statements to impeachment. Subsections (b), (c) and (d) provide procedures for the production of "statements," and for the consequences to the Government of failure to produce. Subsection (e) restrictively defines with particularity the term "statement" as used in the three preceding sections. The suggestion that the detailed statutory procedures restrict only the production of the type of statement described in subsection (e), leaving all other statements, e. g., non-verbatim, non-contemporaneous records of oral statements, to be produced under pre-existing rules of procedure as if the statute had not been passed at all, flouts the whole history and purpose of the enactment. It would mock Congress to attribute to it an intention to surround the production of the carefully restricted and most trustworthy class of statements with detailed procedural safeguards, while allowing more dubious and less
To be sure, the statute does not, in so many words, state that it is the exclusive, limiting means of compelling for cross-examination purposes the production of statements of a government witness to an agent of the Government. But some things too clearly evince a legislative enactment to call for a redundancy of utterance. One of the most important motive forces behind the enactment of this legislation was the fear that an expansive reading of Jencks would compel the undiscriminating production of agent's summaries of interviews regardless of their character or completeness. Not only was it strongly feared that disclosure of memoranda containing the investigative agent's interpretations and impressions might reveal the inner workings of the investigative process and thereby injure the national interest, but it was felt to be grossly unfair to allow the defense to use statements to impeach a witness which could not fairly be said to be the witness' own rather than the product of the investigator's selections, interpretations and interpolations. The committee reports of both Houses and the floor debates clearly manifest the intention to avoid these dangers by restricting production to those statements specifically defined in the bill.
2. Since the statutory procedures are exclusive they constitute the rule of law governing the production of the statement at issue in this case and it becomes necessary to determine the scope and meaning of the statutory definition of "statement" contained in (e). Clause (1) of (e) permits the production of "a written statement made by said witness and signed or otherwise adopted or approved by him . . . ." Although some situations may arise, creating peripheral problems of construction, its import is clear. Clause (2) widens the definition of "statement" to include "a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the Government and recorded contemporaneously with the making of such oral statement." Clearly this provision allows the production of mechanical or stenographic recordings of oral statements,
However, such a finding is only the beginning of the task of construction. It is clear that Congress was concerned that only those statements which could properly be called the witness' own words should be made available to the defense for purposes of impeachment.
It is also the function of the trial judge to decide, in light of the circumstances of each case, what, if any, evidence
In light of these principles the case before us is clear. Both the District Court and the Court of Appeals correctly held that the sole standard governing production of the agent's memorandum of his conference with Sanfilippo was 18 U. S. C. § 3500. The district judge and a unanimous Court of Appeals held that the statement was not within the definition of statement in (e) as properly understood by them. We have examined the statement and the record and find that the determination of the two courts below was justified and therefore must be sustained.
[For opinion of MR. JUSTICE BRENNAN, joined by THE CHIEF JUSTICE, MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS, see post, p. 360.]
APPENDIX A TO OPINION OF THE COURT.
SUMMARY OF LEGISLATIVE HISTORY DEMONSTRATING THE INTENT OF THE CONFERENCE MEASURE TO RETAIN AS A PRIMARY PURPOSE OF THE ACT A PROHIBITION OF PRODUCTION OF ALL STATEMENTS NOT DESCRIBED IN SUBSECTION (E). (SEE PP. 350-351, ANTE.)
The bills as they went to Congress contained explicit provisions making them exclusive. For example, the Senate bill provided in subsection (a):
The House bill contained a similar provision.
Although the last phrase of this section was dropped out when the section was rewritten to eliminate reference to the Federal Rules of Criminal Procedure, see 103 Cong. Rec. 16488; H. R. Rep. No. 1271, 85th Cong., 1st Sess., there is no indication that its omission was intended
What small debate there was following the Conference Report supports the conclusion that no change in the exclusiveness of the bill was intended. For example, Senator O'Mahoney, introducing the conference measure, stated that, "[t]here was some fear upon the part of the Department of Justice that the Senate bill would create a greater latitude for the examination of irrelevant reports of agents. The language which was devised by the conferees has cleared up the doubts . . . ." 103 Cong. Rec. 16487. See also 103 Cong. Rec. 16488-16489. In the House, Representative Keating, one of the Conferees, explained that "The conferees provided that the only statements a defendant could see, and then only in the courtroom were those actually signed or formally approved by the witness or a stenographic verbatim recital of a statement made by a witness which is recorded contemporaneously with the making of such oral statement.
APPENDIX B TO OPINION OF THE COURT.
PARTIAL SUMMARY OF LEGISLATIVE HISTORY BEARING ON THE PROPER CONSTRUCTION OF SUBSECTION (E). (SEE PP. 351 AND 352, ANTE.)
The original Senate bill, as passed by the Senate, allowed the production of "any transcriptions or records of oral statements made by the witness to an agent of the Government . . . ." See 103 Cong. Rec. 16130. During the course of the Senate debate an amendment had been offered to limit this provision to mechanical transcriptions or recordings. See 103 Cong. Rec. 15930-15931. This amendment was rejected after Senator O'Mahoney, sponsor of the legislation, had argued that it would leave the bill too "limited." "All we are asking," he stated, "is that the records which are relevant and competent, which deal with the oral statements made by Government witnesses whom the Government puts on the stand, with respect to the matters concerning which they testify, be made available." 103 Cong. Rec. 15932. Thus the bill as it left the Senate was clearly not confined to automatic reproductions of oral statements, although its further reach was not explicitly demarcated.
The House bill, as passed, allowed only the production of written statements signed by the witness or otherwise adopted or approved. 103 Cong. Rec. 16125. The present language emerged from the Conference.
Senator O'Mahoney, sponsor of the original Senate bill and one of the Senate Conferees, in submitting the conference bill, made it clear that (e) "would include a memorandum
Senator O'Mahoney replied, "Precisely." Thus although the Senate history indicates that the bill was restricted to a "substantially verbatim recital," it is apparent that the Act was not designed to be restricted to mere mechanical transcription.
The proceedings in the House are less clear. It is true that Representative Keating, one of the House Conferees, did say that only stenographic verbatim recitals need be produced. 103 Cong. Rec. 16739. But this was said in reply to Representative Celler's statement that the conference measure was as liberal as the original Senate bill. Representative Celler was also a House Conferee. The report of the House Managers, signed by all the House Conferees, after pointing out that the term "statement" had been defined in the bill, stated:
This standard, explicitly incorporated into the House Report, has a dual significance. It not only goes beyond mechanical or stenographic statements, in defining the statements which must be made available to the defense, but indicates that once beyond that point a very restrictive standard is to be applied.
MR. JUSTICE BRENNAN, with whom THE CHIEF JUSTICE, MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS join, concurring in the result.
I concur in the result but see no justification for the Court's ranging far afield of the necessities of the case in an opinion essaying obiter a general interpretation of the so-called "Jencks Act," 18 U. S. C. (Supp. V) § 3500. Many more concrete cases must be adjudicated in the District Courts before we shall be familiar with all the problems created by the statute.
We of this Court, removed as we are from the tournament of trials, must be careful to guard against promulgating general pronouncements which prevent the trial judges from exercising their traditional responsibility. The Court's opinion well observes that the hope for a fair administration of the statute rests in the final analysis with its responsible application in the federal trial courts.
Congress had no thought to invade the traditional discretion of trial judges in evidentiary matters beyond checking extravagant interpretations of our decision in Jencks v. United States, 353 U.S. 657, which were said to have been made by some lower courts. Indeed Congress took particular pains to make it clear that the legislation "reaffirms" that decision's holding that a defendant on trial in a criminal prosecution is entitled to relevant and competent reports and statements in possession of the Government touching the events and activities as to which a government witness has testified at the trial. S. Rep. No. 981, 85th Cong., 1st Sess., p. 3. And see H. R. Rep. No. 700, 85th Cong., 1st Sess., pp. 3, 4. I see no necessity in the circumstances of this case which calls for a decision whether § 3500 is the sole vehicle whereby production of prior statements of government witnesses to government agents may be made to the defense. Certainly nothing in the statute or its legislative history justifies our stripping the trial judge of all discretion to make nonqualifying reports available in proper cases. Take the case of a memorandum of a government agent simply stating that a person interrogated for several hours as to his knowledge of the defendant's alleged criminal transactions, denied any knowledge of
No express language of the statute forbids the production, after a witness has testified, of any statement outside the coverage of the definition in subsection (e), and certainly the legislative history is no adequate support for reading an absolute prohibition into it. It is true that until the Conference Report the bill contained a provision making it in terms exclusive; but this language was deleted in Conference. I should think this change would support an inference negating any absolute exclusivity. To be sure, the change was not explained in the hurried floor discussions which followed the agreement in Conference, in the hectic closing days of the session,
The summary in this case does not present the question whether the statute requires the production of a statement which records part of, but not the entire interview between the witness and the government agent. This is a problem which also should be left to the development of the interpretive case law, and in fact I do not read the Court's opinion as essaying a definitive answer. It is a problem I suppose which would be raised by a stenographic, electrical or mechanical transcript of only part of an interview. There is nothing in the legislative history of the statute to indicate that a stenographic transcript of a 10-minute segment of an hour's interview would not be producible under the statute. If such a transcript would be producible, how distinguish a substantially faithful reproduction, made by the interviewer from his notes or from memory, of any part of the interview? Since, as the Court's opinion concedes, statements made up from interviewer's notes
I repeat that Congress made crystal clear its purpose only to check extravagant interpretations of Jencks in the lower courts while reaffirming the basic holding that a defendant on trial should be entitled to statements helpful in the cross-examination of government witnesses who testify against him. Although it is plain that some restrictions on production have been introduced, it would do violence to the understanding on which Congress, working at high speed under the pressures of the end of a session, passed the statute, if we were to sanction applications of it exalting and exaggerating its restrictions, in disregard of the congressional aim of reaffirming the basic Jencks principle of assuring the defendant a fair opportunity to make his defense. Examination of the papers so sedulously kept from defendant in this case and companion cases does not indicate any governmental interest, outside of the prosecution's interest in conviction, that is served by nondisclosure, and one may wonder whether this is not usually so. There inheres in an overrigid interpretation and application of the statute the hazard
"(a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) to an agent of the Government shall be the subject of subpena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.
"(b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.
"(c) If the United States claims that any statement ordered to be produced under this section contains matter which does not relate to the subject matter of the testimony of the witness, the court shall order the United States to deliver such statement for the inspection of the court in camera. Upon such delivery the court shall excise the portions of such statement which do not relate to the subject matter of the testimony of the witness. With such material excised, the court shall then direct delivery of such statement to the defendant for his use. If, pursuant to such procedure, any portion of such statement is withheld from the defendant and the defendant objects to such withholding, and the trial is continued to an adjudication of the guilt of the defendant, the entire text of such statement shall be preserved by the United States and, in the event the defendant appeals, shall be made available to the appellate court for the purpose of determining the correctness of the ruling of the trial judge. Whenever any statement is delivered to a defendant pursuant to this section, the court in its discretion, upon application of said defendant, may recess proceedings in the trial for such time as it may determine to be reasonably required for the examination of such statement by said defendant and his preparation for its use in the trial.
"(d) If the United States elects not to comply with an order of the court under paragraph (b) or (c) hereof to deliver to the defendant any such statement, or such portion thereof as the court may direct, the court shall strike from the record the testimony of the witness, and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.
"(e) The term `statement,' as used in subsections (b), (c), and (d) of this section in relation to any witness called by the United States, means—
"(1) a written statement made by said witness and signed or otherwise adopted or approved by him; or
"(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the Government and recorded contemporaneously with the making of such oral statement."